John W. Griffiths, III, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionAug 29, 2011
0120100551 (E.E.O.C. Aug. 29, 2011)

0120100551

08-29-2011

John W. Griffiths, III, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.




John W. Griffiths, III,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

(Customs and Border Protection),

Agency.

Appeal No. 0120100551

Hearing No. 530-2008-00126X

Agency No. HS-07-CBP-001963

DECISION

Complainant filed an appeal from the Agency’s final order dated October

23, 2009, finding no discrimination with regard to his complaint.

29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the

Agency’s final order.

BACKGROUND

In his complaint, dated September 10, 2007, Complainant, a Supply Chain

Security Specialist, GS-1801-13, in the Agency’s Customs-Trade

Partnership Against Terrorism (C-TPAT), Newark Field Office,

Newark, New Jersey, alleged discrimination based on age (over 40)

when he was not selected for the position of Supervisory Supply Chain

Specialist, GS-14. Upon completion of the investigation of the complaint,

Complainant requested a hearing before an EEOC Administrative Judge (AJ).

On September 25, 2009, the AJ issued a decision without holding a hearing,

finding no discrimination. The Agency’s final order implemented the

AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive legal

and evidentiary standards that apply to the case, there exists no genuine

issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). In ruling on a motion for summary judgment, a court’s

function is not to weigh the evidence but rather to determine whether

there are genuine issues for trial. Id. at 249. The evidence of the

non-moving party must be believed at the summary judgment stage and all

justifiable inferences must be drawn in the non-moving party’s favor.

Id. at 255. An issue of fact is “genuine” if the evidence is such

that a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material”

if it has the potential to affect the outcome of the case.

The Commission finds that grant of summary judgment was appropriate,

as no genuine dispute of material fact exists. In this case, the AJ

determined that, assuming arguendo that Complainant had established a

prima facie case of discrimination, the Agency articulated legitimate,

nondiscriminatory reasons for the alleged nonselection. The Agency

C-TPAT Field Director stated that there were twelve applicants, i.e., four

noncompetitive applicants, including Complainant, and eight on the best

qualified list. The Director indicated that considering C-TPAT experience

and performance in that program, he recommended three applicants, and not

Complainant, to the Recommending Official (RO) for the position at issue.

Specifically, the Director stated that all the applicants on the best

qualified list performed at an outstanding level and had extensive

experience managing employees. In contrast, Complainant had less

management experience than any of the best qualified candidates and that

his performance as a Supply Chain Security Specialist was only average.

The RO stated that he also considered experience in the C-TPAT program

a critical factor. Specifically, the RO indicated that he recommended

the selectee because he had been a Supply Chain Security Specialist in

the C-TPAT program since its inception in 2003, whereas Complainant

had less than one year of experience as a Supply Chain Specialist in

the C-TPAT program. Complainant does not dispute this. The Agency

Selecting Official ultimately selected the selectee for the position.

After a review of the record, we agree with the AJ that Complainant

failed to rebut the Agency’s legitimate, nondiscriminatory reasons for

not selecting him for the position at issue. Furthermore, Complainant

failed to show that his qualifications for the position were plainly

superior to the selectee’s qualifications or that the Agency’s action

was motivated by discrimination. See Wasser v. Department of Labor,

EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing,

we find that Complainant has failed to show that the Agency’s action

was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this

case if the Complainant or the Agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party’s timely request for reconsideration. See 29

C.F.R. § 1614.405; Equal Employment Opportunity Management Directive

for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

77960, Washington, DC 20013. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. § 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official Agency

head or department head, identifying that person by his or her full

name and official title. Failure to do so may result in the dismissal

of your case in court. “Agency” or “department” means the

national organization, and not the local office, facility or department

in which you work. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time limits

as stated in the paragraph above (“Right to File A Civil Action”).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

8/29/11

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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